Sunday, 30 October 2016

Rachel Landry, Fellow for Refugee Policy, Center on National Security, Fordham Law School

In
the middle of one night in January 2016, Salam Aldeen received what had now
become a routine call regarding boats in distress off of the coast of Greece.
Since co-founding Team Humanity, a volunteer rescue organisation, in September
2015, Aldeen had responded to distress calls from approximately 200 boats with
a total of approximately 10,000 refugees on board. As per protocol, Aldeen
informed the Greek coast guard that he was going out in search of the boats.
Yet on this particular evening, Aldeen and the four other volunteer lifeguards
with him never reached the refugees in need of rescue.

When
a military ship came threateningly close to their rescue boat, they altered
course and headed back to shore. Before they reached land, two military vessels
and the Greek coast guard surrounded them, ultimately arresting them and
confiscating their boat. Their alleged crime: human
smuggling. Their actions: attempting to fulfil the widely acknowledged duty
to rescue at sea. Aldeen was released from prison after paying a significant
fee, but is unable
to leave Greece and is required to check in weekly with the Greek
authorities. He awaits trial and faces up to ten years in prison.

The
arrest of Aldeen and the four volunteers is far from unique. Deeply entangled within the EU’s robust
fight against human smuggling in the current ‘refugee crisis’ is the threat of
criminalisation of a range of humanitarian acts, which should not be punished
but rather praised. The European
Commission (EC) has rhetorically acknowledged the importance of ‘avoiding
risks of criminalisation of those who provide humanitarian assistance to
migrants in distress’, yet the actions of individual Member States suggest
otherwise.

The
EC is scheduled to release a proposal by the end of 2016 to ‘improve the
existing EU legal framework to tackle migrant smuggling’. As such, it has been
reviewing Council
Directive 2002/90/EC of 28 November 2002 defining the facilitation of
unauthorised entry, transit and residence (Facilitation Directive), legislation
that governs human smuggling in addition to other acts facilitating the transit
and stay of irregular migrants. Given the much-needed review of the Facilitation
Directive and the current strategy to combat abhorrent and ‘humanitarian’ acts
of smuggling alike, it is a critical moment to reflect upon the moral quality and
complexities of human smuggling.

I
offer five observations as a preliminary framework for considering the
deficiencies in the Facilitation Directive and where the boundary between
blameworthy acts of smuggling and blameless acts of ‘humanitarian smuggling’
should be drawn. These observations stem from my recently published research
through the Refugee Studies Centre, The
‘humanitarian smuggling’ of refugees: Criminal offence or moral obligation?

1. Combatting
human smuggling and all humanitarian acts construed as such are in service of
the larger goals of deterring and securitising irregular migration.

The
EU is employing all possible tactics to deter refugees and migrants from
attempting to reach its Member States’ shores – from the United Nations
Security Council Resolution permitting EU security forces to intercept vessels
suspected of human smuggling off the coast of Libya, to the deployment of NATO
warships in the Aegean Sea, to the EU-Turkey deal to send those arriving
irregularly back to Turkey. These policies of deterrence and securitisation are
neither ad hoc nor unprecedented. Rather, they are integral to EU law governing
irregular migrants and those who assist them.

Notably,
the Facilitation Directive is first and foremost concerned with deterring
irregular migration. As the first paragraph of the Directive states: ‘[o]ne of
the objectives of the European Union is the gradual creation of an area of
freedom, security, and justice, which means, inter alia, that illegal
immigration must be combatted’. Prohibiting the facilitation of irregular entry
is merely one means to combat irregular migration. As Spena
argues, ‘[p]aradoxical as it may seem, in the Facilitation Directive’s
approach, smuggling, as a form of facilitation, is only wrongful in an
ancillary way, as if it was only a form of complicity in the real wrong which
is the wrong of irregular migration’. The focus on deterring irregular migration
produces a disregard for the smuggled migrants themselves, highlighted by the
fact that the Directive does not define its relationship to international human
rights or refugee law.

2. The
Facilitation Directive, as transposed into national law, permits the
criminalisation of genuinely humanitarian acts.

The
infringements set out in the Facilitation Directive mirror its expansive intent
to sanction, most regularly through criminal law, a wide range of activities
that may support irregular migration. Article 1.1.a stipulates that Member
States:

shall adopt appropriate sanctions on: any person who
intentionally assists a person who is not a national of a Member State to
enter, or transit across, the territory of a Member State in breach of the laws
of the State concerned on the entry or transit of aliens.

Article
1.2 includes an optional ‘humanitarian clause’, which applies only to Article
1.1a such that ‘[a]ny Member State may decide not to impose sanctions...where
the aim of the behaviour is to provide humanitarian assistance to the person
concerned’.

The
majority of Member States have transposed Article 1.1a expansively, permitting
the criminalisation of a broad range of individuals facilitating irregular
entry – from members of smuggling rings putting refugees in deliberate danger
to volunteers rescuing refugees in peril at sea. The optional humanitarian
exemption ultimately permits the criminalisation of what seems to be a
limitless spectrum of activity at the national level, failing to enable
subjects to orientate their behaviour accordingly and even prohibiting
ethically defensible, if not praiseworthy, acts like those of Aldeen. According
to a 2014
report by the Fundamental Rights Agency, the optional ‘humanitarian clause’
has been explicitly transposed in a variety of forms at the national level in only
eight Member States.

3. The
historic example of the rescue of the Danish Jews during World War II clearly
illustrates, with the benefit of hindsight, the moral necessity and
praiseworthiness of certain acts of smuggling.

The
current ‘refugee crisis’ is regularly referred to as the largest crisis since
World War II. Equally, international cooperation to resettle refugees in the
aftermath of WWII is frequently invoked as a response that should be emulated
today. Less frequently invoked, however, are those ‘humanitarian smugglers’ –
known today simply as heroes - who rescued Jews from persecution long before
the international community stepped in.

In
1943, 95% of the Jewish
population in Denmark was able to escape deportation to concentration
camps, in large part due to the collective action of fellow citizens and the
Danish resistance movement. When the Nazi regime formalised the order to deport
Danish Jews to concentration camps in September 1943, within two weeks Danes
mobilised to successfully smuggle more than 7,200
Danish Jews and 680 non-Jewish family members to safety in Sweden,
predominantly by way of Danish fishermen.

Those
individuals who effectively evacuated almost the entire Jewish population out
of Denmark not only made an assessment of the likely consequences and certainty
of the impending harm for the Danish Jews if they did not act, but also
accepted significant risks to their own lives as a result of their actions. If
caught by the Nazis, those who aided and abetted Jews faced criminalisation and
even possibly execution. The heroic rescue of the Danish Jews from impending
deportation to concentration camp is but one reminder of the historical
continuity, praiseworthiness, and unfortunate necessity of ‘humanitarian
smuggling’.

4. The
drafters of the 1951 Convention Relating to the Status of Refugees (Refugee
Convention) considered including a safeguard against penalisation for
individuals assisting refugees to cross borders irregularly on humanitarian
grounds.

Under
certain circumstances, Article 31 of the Refugee Convention provides that
presumptive refugees may cross borders irregularly and nevertheless be exempt
from punishment. The drafters recognised that given the unique and vulnerable
predicament of refugees, a refugee may have no choice but to cross borders irregularly
and should not be penalised for doing so.

In
light of the expansive scope of the Facilitation Directive and the threatened
criminalisation of humanitarians like Aldeen, it may come as a surprise that some
of the drafters - in particular the Swiss government - recognised that safeguards
should exist not only for refugees, but also their rescuers. According to the
French representative, organisations assisting refugees to reach safety were
engaging in ‘an obvious
humanitarian duty’. The French government was nevertheless opposed to
modifying the language of Article 31, fearing it would encourage refugee
organisations to become ‘organisations for the illegal crossing of frontiers’. Similarly,
the United States representative acknowledged that the failure to include a
safeguard for those proving humanitarian assistance to refugees irregularly
crossing borders might be ‘a possible oversight in the drafting of the article’.
Yet, the United States government did not support including protections for
those providing assistance.

There
is, of course, no safeguard for ‘humanitarian smugglers’ in the Refugee
Convention. Yet, there was a recognition that governments should not – and a false
assumption that they would not - criminalise those assisting refugees for
humanitarian reasons.

5. The
November 2015 landmark Supreme Court of Canada case, R. v. Appulonappa, may set a legal precedent for a more narrowly
drafted smuggling offence in the Facilitation Directive to decriminalise ‘humanitarian
smugglers’.

The
November 2015 Supreme Court of Canada (SCC) case, R v.
Appulonappa, sets a legal precedent for a narrower smuggling
prohibition. The SCC ruled that its law criminalising smuggling, S. 117 of the Immigration and Refugee Protection Act,
was overbroad and should be ‘read down…as not applying to persons providing
humanitarian aid to asylum-seekers or to asylum-seekers who provide each other
mutual aid (including aid to family members)’. S. 117 is not dissimilar to
Article 1.1 of the Facilitation Directive in that it theoretically criminalises
anyone who facilitates irregular entry, regardless of motive or the means by
which the act is carried out.

The SCC
ruled that S. 117 exceeded its legislative intent of criminalising organised
crime: ‘[a] broad punitive goal that would prosecute persons with no connection
to and no furtherance of organised crime is not consistent with Parliament’s
purpose’. Possible
amendments to S. 117 may serve as a model for a more narrowly drafted
prohibition that more accurately delineates between blameless and blameworthy
acts of smuggling.

Conclusion

These
five observations offer entry points into the moral complexities of human
smuggling and the legal imperative of decriminalising humanitarian acts of the
facilitation of irregular entry. Ultimately, if the EC intends to provide
recommendations to amend the Facilitation Directive that reflect the need to avoid
criminalising humanitarian assistance to irregular migrants, it will first need
to more narrowly and clearly define acts of the facilitation of irregular entry
worthy of criminalisation. The EC’s challenge lies with the fact that the
primary purpose of the Facilitation Directive is to deter irregular migration
and a narrower directive would ultimately undermine this objective.

In
the current crisis, human smugglers – and all individuals deemed as such – have
become Europe’s scapegoat. Targeting human smugglers worthy of criminalisation
and those ‘humanitarian smugglers’ worthy of praise is Europe’s Band-Aid
solution to a problem that can only be solved through safe and legal pathways
for refugees to reach Europe.

The issue of
hate speech regulation has again moved in recent years to the forefront of
legal and political debate in Europe. To note that questions in this area are
complex, and often generate diverging opinions as to the appropriate balance
between legislation and the protection of rights, is no novelty. What is
striking, however, is the marked difference in the tendencies of those “natural
born twins” (Gabriel
Toggenburg), the EU and the Council of Europe, in their respective
approaches to hate speech. How might this be explained? And what, crucially, might
be the wider legislative implications at European level?

The EU and the Fight Against Online Hate Speech

First, let us
consider the EU’s efforts in this context, which might here be exemplified in
relation to the battle against online hate speech. In response to the problem
and threat of terrorism and radicalisation, and prompted in particular by the
attack in Brussels on 22 March 2016, the EU decided to intensify its work on fighting
hate speech – a campaign upon which they had embarked some eight years earlier with
the adoption of the Council
Framework Decision 2008/913/JHA on combating certain forms and expressions
of racism and xenophobia by means of criminal law. As part of its security agenda
for the period 2015-2020, the Commission presented, on 14 June 2016, a communication
outlining action in seven specific areas where cooperation at EU level could
effectively support Member States in preventing and countering radicalisation. Alert
to the ever greater role played by the internet in the dissemination of views
and ideologies, the European Commission took the step of consulting IT
companies with the intention of creating legislation designed to inhibit the
online spread of illegal content inciting violence.

In pursuing such
an initiative, the Commission was, in fact, expanding upon longer-standing
awareness of the importance of preventing the spread of hate speech via media
forms. As Advocate General Yves Bot concluded in his Opinion
from 5 May 2011 with respect to the cases
C-244/10 and C-245/10:

Member states are to ensure that television broadcasts do not
contain any incitement to hatred on grounds of race, sex, religion or
nationality, must be interpreted as also prohibiting broadcasts which, in
attempting to justify a group classify as a ‘terrorist’ organisation by the
European Union, may create reactions of animosity or rejection between
communities of different ethnic or cultural origin (para 93).

In May 2016, the
European Commission had, moreover, already signed an online Code
of Conduct on countering illegal hate speech online with four of the
biggest internet companies – namely, Twitter, Facebook, YouTube and Microsoft. The
code is not legally binding yet would appear to indicate a willingness on the
part of the named IT companies to support the EU’s drive to prevent online hate
– a willingness that owes in some measure, no doubt, to the protections
supplied by Articles 12 to 14 of the e-Commerce
Directive of 8 June 2000, commonly known as the ‘safe harbour’ provisions. According
to Article 12, the provider of a service cannot be held liable for any
information it transmits – including hate speech – as long as it: (a) does not
initiate the transmission; (b) does not select the receiver of the
transmission; and (c) does not select or modify the information contained in
the transmission. Article 14 limits the liability of providers of “information
society services” still further when such services consist only of the “storage
of information” provided by a recipient of the services. This provision only
applies where the provider does not control or have knowledge of the illegal
activity or information; or having gained knowledge or awareness of such
illegal activity expeditiously removes or disables the links to the activity.

However we
speculate on the primary motives of the IT companies, of prime significance is
that they are assisting the EU in its fight against online hate speech. The
Code encourages social media companies to take quick action as soon as a valid
notification of online hate speech has been received, e.g. by removing or
disabling access. It also underlines that, in order to combat the spread of
illegal hate speech, “it is essential to ensure that relevant national laws
transposing the Council Framework Decision 2008/913/JHA are fully enforced by
Member States in the online as well as the in the offline environment.” With the
adoption of the Council
Framework Decision, the EU considered that Member states were permitted to enact
criminal sanctions against anyone:

publicly condoning, denying or grossly trivialising crimes of
genocide, crimes against humanity and war crimes as defined in Articles 6, 7
and 8 of the Statute of the International Criminal Court, directed against a
group of persons or a member of such a group defined by reference to race,
colour, religion, descent or national or ethnic origin when the conduct is
carried out in a manner likely to incite to violence or hatred against such a
group or a member of such a group.

Reading such
provisions takes us to the heart of one of the key dilemmas at the core of
current debates on hate speech – namely, the definition and understanding of
the concept itself. A brief excursus on this point seems warranted here. For
the question of definition remains somewhat thorny – hate speech is a term that
is, at once, both over- and underdetermined. As Anne Weber puts it in her Manual
on Hate Speech for the Council of Europe in 2009:

No universally accepted definition of the term “hate speech” exists,
despite its frequent usage. Though most States have adopted legislation banning
expressions amounting to “hate speech”, definitions differ slightly when
determining what is being banned.

This is
undeniably true. Yet there are international and national sources that provide
useful guidance. The Council of Europe’s Committee of Ministers’ Recommendation
97(20) on “Hate Speech” defined it as follows:

[T]he term “hate speech” shall be understood as covering all forms
of expression which spread, incite, promote or justify racial hatred,
xenophobia, anti-Semitism or other forms of hatred based on intolerance,
including: intolerance expressed by aggressive nationalism and ethnocentrism,
discrimination and hostility against minorities, migrants and people of
immigrant origin.

Also relevant
here are the provisions of Art. 20, para. 2 of the International Covenant on
Civil and Political Rights (ICPPR) of 1966, which stipulate that “any advocacy
of national, racial or religious hatred that constitutes incitement to
discrimination, hostility or violence shall be prohibited by law.” An
authoritative interpretation of Art. 20, para. 2 is supplied by General Comment
No. 34 by the Human Rights Committee, which reads:

What distinguishes the acts addressed in article 20 from other acts
that may also be subject to limitations, is that for the acts addressed in
article 20, the Covenant indicates the specific response required from the
State: their prohibition by law. It is only to this extent that article 20 may
be considered as lex specialis with regard to article 19 [which establishes
other limitations on freedom of expression]. The acts referred to in article
20, paragraph 2, must cumulatively (a) advocate, (b) be for purposes of
national, racial or religious hatred, and, (c) constitute incitement to
discrimination, hostility or violence. By “advocacy” is meant public forms of
expression that are intended to elicit action or response. By “hatred” is meant
intense emotions of opprobrium, enmity and detestation towards a target group.
“Incitement” refers to the need for the advocacy to be likely to trigger
imminent acts of discrimination, hostility or violence. It would be sufficient
that the incitement relate to any one of the three outcomes: discrimination,
hostility or violence (para. 51).

This
interpretation provides perhaps the fullest, and most useful, elucidation of
hate speech – one that does most to capture its particular power to harm. Read
in conjunction with modern understandings of the potential of online media to
contribute to the dissemination of political views, and to generate and spread
‘hatred’, it casts particularly sharp light, moreover, on how, by enlisting the
support of IT companies, the EU is taking a progressive – and legitimate –
stand in trying to confront modern hate speech in one of its most threatening
forms.

The Council of Europe: The Protection of Freedom of Expression
Over the Fight against (Online) Hate Speech?

The situation is
somewhat different, however, in the case of the other main European organ, the
Council of Europe, which appears to be taking a much more cautious approach. A
latest manifestation of this has been in the Perinçek
case, for instance, where the European Court of Human Rights (ECtHR) decided,
on 15 October 2015, that Switzerland’s criminalisation of Doğu Perinçek for
genocide denial constituted a violation of Article 10 of the European Convention
on Human Rights (ECHR). The Court finding here was that the restriction on
freedom of expression imposed by the Swiss authorities was not proportionate.

This is but the
latest sign of a divergence in the attitudes and response from two European
organs to the issue of hate speech, reflecting a breach within Europe with regards
to the status of hate speech in relation to freedom of expression, the latter
itself a fundamental notion of both the ECHR and the Charter of
Fundamental Rights of the European Union (Article 11).

The prevention
and prohibition of online hate speech has been on the agenda of the Council of
Europe since at least 2001, when the Convention
on Cybercrime was adopted. In 2003, an Additional
Protocol concerning the criminalisation of acts of a racist and xenophobic
nature committed through computer systems was adopted. According to this
Additional Protocol:

1. Each Party shall adopt such legislative measures as may be
necessary to establish the following conduct as criminal offences under its
domestic law, when committed intentionally and without right: distributing or
otherwise making available, through a computer system to the public, material
which denies, grossly minimises, approves or justifies acts constituting
genocide or crimes against humanity, as defined by international law and
recognised as such by final and binding decisions of the International Military
Tribunal, established by the London Agreement of 8 August 1945, or of any
other international court established by relevant international instruments and
whose jurisdiction is recognised by that Party. […]

In June 2016, however,
at the same time that the EU Code of Conduct was adopted, the Council of Europe
Secretary General, concerned about internet censorship, decided that rules for
blocking and removing illegal content must be transparent and proportionate.
This opinion
came after his report
on the state of democracy, human rights and the rule of law, based on a
study conducted by the Swiss Institute of Comparative Law and identifying a
number of shortcomings in some states, became public.

In the report,
the Secretary General clearly stated that:

In the majority of member states, the legal framework on blocking,
filtering and removal of Internet content meets the requirements of being
prescribed by law, pursuing legitimate aims and being necessary in a democratic
society, in accordance with Article 10 of the Convention. Exceptions remain
however, notably with regard to laws regulating hate speech and
counter-terrorism (p. 33).

In view of this,
one can understand why the Grand Chamber of ECtHR decided in the Perinçek case that the Swiss
criminal provision was disproportionate and did not fulfil the criteria of
being necessary in a democratic society. Yet Art. 261bis of the Swiss
penal code provides that ‘any person who publicly denigrates or
discriminates against another or a group of persons on the grounds of their
race, ethnic origin or religion in a manner that violates human dignity,
whether verbally, in writing or pictorially, by using gestures, through acts of
aggression or by other means, or any person who on any of these grounds denies,
trivialises or seeks justification for genocide or other crimes against
humanity, […] is liable to a custodial sentence not exceeding three years or to
a monetary penalty’. It is difficult to see how a criminal law could be much
more transparent or clearer here. The decision to uphold Perinçek’s claim to a
violation of Art. 10 ECHR certainly delivered a blow to the fight against hate
speech at the EU level – as was duly noted by judges Spielmann (president of
the Grand Chamber), Casadevall, Berro, De Gaetano, Sicilianos, Silvis and
Kūris, in their joint
dissenting opinion:

With regard to the finding that there was no obligation on
Switzerland to criminalise the applicant’s statements (see paragraphs 258-68),
we confess to having serious doubts as to the relevance of the reasoning. Can
it not be maintained, on the contrary, that a (regional) custom is gradually
emerging through the practice of States, the European Union (Framework Decision
2008/913/JHA) or ECRI (Policy Recommendation no. 7)? We would also note that
beyond Europe, the United Nations Committee on the Elimination of Racial
Discrimination has repeatedly recommended criminalising negationist discourse.
Can all these developments be disregarded at a stroke by examining the case in
terms of an alleged conflict of obligations? (para 10)

It thus seems that
the Council of Europe is taking a retrogressive step in the fight against hate
speech – both offline and online – as the laws in place regulating hate speech do
not appear to be in line with the ECHR. The approach of the Council also lies
in opposition to that being taken by the EU, rendering the position of EU
members difficult: should they criminalise online hate speech, or should they rather
grant greater weight to Art. 10 ECHR? Indeed, what if Switzerland was an EU
member? By criminalising genocide denial as a form of hate speech liable to
incite violence, as it initially did in the Perinçek case, Switzerland complied
with the Framework Council decision. In so doing, however, it contravened Art.
10 of the ECHR and was thus found guilty of a violation by the ECtHR.

Conclusion

The question of
how to square the protection of freedom of expression with the imposition of
criminal sanctions for hate speech is, doubtless, one which is difficult. Yet
wherever one draws the line between acceptable and unacceptable limits on
freedom of expression, it seems apparent that, at the European level, the EU
and the Council of Europe should be working together much more coherently in
attempting to confront the issue of online (and offline) hate speech.

To this end, the
Council of Europe should liaise more closely with the EU – not least as the
Secretary General, in his 2016
report, commented that:

-In addition to
calling on member states to implement in full the recommendations in this
report, I urge them to make clear their commitment to the European Convention
on Human Rights and the Strasbourg Court. Our Convention system can never be
taken for granted: it depends on the active and constructive engagement of all
governments. By embedding these fundamental freedoms into the legal, political
and social fabric of their nations, Europe’s leaders can build democracies
which are more open and inclusive and, as a result, more secure (p.5)

In order to
facilitate a more consistent approach across Europe, it seems clear that the European
Court of Human Rights itself has to be prepared to allow for greater
restrictions to be placed on freedom of expression, precisely as noted by the
judges in their dissenting opinion in the Perinçek
case. As long as the Strasbourg Court continues to permit freedom of expression
to be used as a catch-all defence, it will remain extremely difficult to combat
online hate speech and to develop a common European standard. Two measures thus
seem necessary. Firstly, a common understanding of what hate speech is and
entails should be striven for – the interpretation supplied by General Comment
No. 34 by the Human Rights Committee provides useful initial orientation,
not least in the manner that it explicates key notions of ‘incitement’ and
‘hatred’, and in the way that it outlines the possible effects of hate speech
beyond physical violence. Secondly, there needs to be common agreement on the
way in which such forms threaten democratic values – how they violate ‘the
respect of the rights or reputations of others’ and may imperil ‘national
security’, ‘public order’, or ‘public health or morals’, and thus constitute a
legitimate restriction on freedom of expression provisions.

Thursday, 27 October 2016

Readers of this
blog will find below the English translation of Judge Franklin
Dehousse’s farewell address, which he had hoped to give on the occasion of
his departure from the EU General Court last month having served on its bench
since 7 October 2003.

In an apparent break
with tradition, no public ceremony was organised for the departing EU judges,
and an internal meeting was arranged instead (see this article
published in Le Jeudi on 22 September 2016). While regrettable, this is perhaps
not surprising. Indeed, Judge Dehousse has been among one of the most outspoken
critics of the controversial reform of the EU’s court system, which is now encapsulated
in Regulation 2015/2422
and Regulation 2016/1192
(and which we have ourselves critically analysed here
and here).

Dehousse’s
assessment and alternative recommendations are comprehensively set out in three
meticulously researched papers, which he published during the course of his
judicial term:

Readers may also
find of interest his paper dedicated to the Unified
Court on Patents, published in 2013 (Egmont Paper 60), which explores inter
alia the impact of the creation of a new European patent court on the EU’s
court system.

The address below,
which Judge Dehousse kindly authorised us to publish on this blog, contains
many valuable insights into the internal workings of the EU courts and, at
times, the testing relationship between its (then) three constitutive judicial
entities, particularly with respect to the controversial doubling in size of
the General Court, and the recent dissolution of the Civil Service Tribunal. His
address also offers some sound advice on how any structural reform of the EU’s
court system ought to be conducted in the future. Last but not least, the
address explains how the CJEU should seek to better manage and conduct itself,
failing which its authority may be fatally undermined, with potential negative
consequences on the legitimacy of the EU as a whole. As such, this farewell
address undeniably deserves, in our view, to be made easily accessible to EU
scholars and interested readers. It is our pleasure to share it with you via
this blog.

Alberto Alemanno,
Professor of Law, Jean Monnet Chair of EU Law and Risk Regulation at HEC Paris
and Global Professor of Law, New York University School of Law (Twitter:
@alemannoEU)

Laurent Pech,
Professor of Law, Jean Monnet Chair of EU Public Law and Head of the Law and
Politics Department at Middlesex University London (Twitter: @ProfPech)

Judge Dehousse’s Farewell
Address to the Court of Justice of the European Union

Ladies and
gentlemen,

Dear
colleagues,

To me, any holder
of public office must always present a report at the end of her or his
function. This seems all the more necessary than those years were sometimes
fraught with conflict. It must be acknowledged honestly in an Institution whose
mission is to ensure the transparency of all other Institutions.

When I arrived here
13 years ago, this office was my seventh profession and my fourth European Institution,
after the Parliament, the Commission, and the Council. European affairs had
been at the centre of my multiple activities, whether in the public or private
sector, at the national or international level, in legal circles or in the
media. I thus arrived with much curiosity and enthusiasm. To give away the plot
at once, my curiosity has been steadily increasing over the years though, in
many respects, my enthusiasm has been declining.

During the first three
years, I built a good team, which is absolutely essential here. I learned what
I ignored. And we eliminated a huge backlog: a stock of more than 100 cases
initially. After that, I wondered how I could still help the Institution.
Thanks to my previous experience, I could obviously assist other cabinets with
backlog, which was done. After that, according to Adam Smith and Ricardo, I
searched for my comparative advantage. Management, ICT, inter-institutional
relations, and strategy seemed to be rather rare talents here. I thus invested
in these domains.

On one hand, my
initiatives focused on the management of the General Court, then in big
trouble. For me, having followed many corporate restructurings, this required
first a better evaluation of the production of the cabinets, and its production
units. Moreover, before asking for any additional means, it seemed essential
for the credibility of the Institution to show that it had exhausted all
internal sources of productivity. To this end, I harassed the authorities to
establish the first serious statistics on the backlog and its causes. This
included concepts such as the infamous “PPPU” (the “productivity per personnel
unit”), or the threatening “delays columns” (adding all delays for all cases) (for
more comments on this, see my first report TEPSA / Egmont in 2011). Originally,
all this was not popular at all. Often after long and painful discussions,
these measures were nevertheless taken, to the honour of my colleagues. In my
humble opinion, they played a vital role in the elimination of the backlog
since 2011 - and without any additional resources.

On the other hand,
my initiatives focused on the management of the Institution. There, almost
immediately, the problems started. Quickly the local leaders saw my initiatives
as interferences, and even usurpations. Without commenting on all the episodes
of this long saga, four at least deserve a brief comment.

First, in 2007,
just before the signing of the Treaty of Lisbon, some of us learned that the
President of the Court had sent a letter to Council in order to ask for a
series of changes, presented as essentially formal, in the new Lisbon Treaty.
After reading, these changes on the contrary appeared quite essential.
Basically, they aimed for a large substitution of the Court to the Institution
in various provisions.

Everyone, of
course, has personal sensitivities. Mine were certainly accentuated by my
previous experiences in treaty revisions. For me, everything in this episode
was shocking. These were not mere formal changes, but essential amendments.
They did not result from any official position taken by the Court of Justice.
They had no detailed motivation. There had been absolutely no official
information within the Institution, to the public or to the Member States,
though they remain the guardians of the treaties. And, finally, these
provisions were not improving the adaptability of the Treaties. On the
contrary, they would have imposed more treaty revisions in the future. This
largely destroyed my trust in the Institution’s management.

Secondly,
information technologies (IT) became another conflict zone. From the beginning,
this Institution had seemed to suffer from a strong problem in this area. Like
many other institutions I have known, it had decided IT development in silos,
uncoordinated from one another. However, unlike many others, it had never
corrected this defect. For years, I tried to convince the people in charge in
the IT committee of the need for a more global system of management. Though
some understood that, it was impossible. A senior collaborator of the Court’s President
constantly imposed his personal vision, in defiance of all others.
Consequently, the Institution went on implementing simultaneously different and
uncoordinated strategies. For example, three different internal communication
systems were developed, without any study of possible synergies between them.
Later, three different reference systems were simultaneously used for the
jurisprudence.

In the name of hierarchy,
this nonsense was maintained for many years. The Institution had not even a
general plan of its IT systems until 2010! The “leaders” needed a half IT-crash
to begin to see the need of one. Though the present managers try now to improve
the situation, the legacy costs are extremely heavy, and the system is hardly
optimal. As all experimented users know, even the research in jurisprudence
encounters substantial problems.

With some
administration officials, we have tried to stop this drift. Finally, after many
debates, in 2010, the IT committee imposed a comprehensive analysis of the
existing system before any new spending. Alas, the cabinet of the Court’s President
had simply the minutes of the committee modified, despite the formal opposition
of the Court’s registrar. This was my second shock. The next decisions were
simply moved to a clandestine meeting. Meanwhile, the IT committee was still
defining its own strategy, until finally, the IT committee was simply
abolished.

This saga still
leaves me startled. The suppression of the committee because simplistic instructions
from above are debated reflects a very limited sense of debate. To do this
while IT becomes absolutely central for all activity reflects a great
managerial myopia. Finally, the episode shows the sometimes surreal character
of an Institution where judges have apparently time to think about the choice
of works of art, but not of IT solutions.

Third came in 2011 the
legislative proposal to create new judges to the Tribunal. Let’s make a long
story short. From the beginning, my first objective was to defend, as required
by the Treaties, an open and transparent process. However, the process
degenerated. The transmission of various General Court’s positions to
Parliament and Council was blocked. There was absolutely no impact assessment
or consultation process. As the press revealed, an unauthorized negotiation
took place with one government only, and without the knowledge of the 27 other
Member States. Questionable pieces of information were sent to Parliament and
Council in an unsigned document, undated and unnumbered. (One suspects that if
these pieces were so trustworthy one would have found someone to sign them in an
Institution of 2,000 people.) Other secret letters in the Institution’s name popped
up in the press. To these problems one must still add a highly questionable
ethical procedure opened against one of my colleagues who had provided accurate
judicial statistics at the EP rapporteur’s request. All this leading to a
manifestly disproportionate doubling of the General Court, against its own repeated
analyses from 2010 to 2014.

Again, this saga
still leaves me speechless. Although I have seen in my career dozens of
legislative procedures, that I had never seen. These events have convinced me
to publish accurate and documented reports, to avoid their repetition in the
future. (See the two reports TEPSA / Egmont 2016).

Fourth came the
curious accelerated creation of high administrative positions in the terminal
phase of one President’s cabinet. Apart from other considerations, creating
very quickly such a position, under the exclusive impulse of the Court’s President,
to manage a service of four people, without any general analysis of the
services’ organization, nor any written position from the Court’s registrar
(who is also responsible for all outlays), and based on vague projects (of
which almost none were implemented thereafter) seemed to me strongly below the
standards of good administration.

Many other topics could
be mentioned, such as the specialization of the General Court, or the
assignment of cases within it, both imposed by external interventions
(something incredible for a judge); or the ability of the Courts’ Presidents to
take fundamental decisions for the external representation without any preliminary
debate with members; the distribution of resources between the registries; the
questionable nature of an external activity; the use of drivers; the rights of
trade unions to inform the personnel about the legislative proposal; or the
right of citizens to have access to administrative documents, etc.

In this context, I
fully understand that one can legitimately ask the question: why devote so much
importance, effort and energy to these administrative and legislative issues,
often overlooked?

My answer is
simple. Each time, it was impossible to do otherwise. I've thought very often
about it, trust me, and the same conclusion always came back. Such episodes do
not correspond, in any case for me, to the role and values assigned to that Institution
by the Treaties. A judge does not have the sole mission to care about
principles in her or his judgments; s/he must also worry about them in their own
institution. This is the meaning of the texts. Basically, this Institution is a
collegiate one. Also, when the Courts’ Presidents have powers (which no one
disputes), they are required to use them respecting a series of established
principles by their own jurisprudence: (1) good administration, (2)
transparency, (3) motivation, (4) compliance with judicial independence, and
(5) accountability to the colleagues who elect them. This must be said here very
clearly: according to the existing texts, this Institution is based on the
principle of checks and balances, cherished by Montesquieu, and not the Keizer
Prinzip, so loved by Wilhelm II.

In addition, this
also results from the spirit of the texts. Indeed, in this Institution, if the
judges, who are the most independent and privileged, do not control the
management, then who will? Finally, this is also the price of our credibility
as members of this Institution, especially in a great period of doubt. Each
time, I thus first sought compromises to defend these principles. They were
always refused in the name of the principle of hierarchy, constantly invoked
here, though it is both incorrect legally and inefficient in terms of management.
Reluctantly, I have had to defend these principles otherwise.

My growing disillusionment
explains the drafting of many memos on various topics in the Institution. They
were elaborated with three goals: (1) to inform my colleagues and the personnel
(essential in my Institution’s vision) about important and unexplained
developments; (2) to impose as much as possible collective decisions, involving
the responsibility of all judges; and (3) to leave behind me, and there appears
my love of university and history, a description as detailed and documented as
possible of the Institution’s management. I have wanted to do this not only for
my court, but also for future analysts, and ultimately for European citizens,
who are now rightly tired of the opacity of their Institutions. These documents
form now, as you can see, two strong green books, amiably bound by a bunch of
friendly colleagues.

Some locals have
sometimes spoken of all this with disdain. We’ll see. We can note that, slowly,
some local practices change. The judges whose collaborators are candidates for
an appointment are now excluded from the selection process, even when they are
presidents. This is surely an improvement. The simplification of the IT system
is now an official objective. Article 52 of the Statute that requires an
agreement between the Presidents of the two Courts about the administration has
been suddenly rediscovered. An incredible appeal brought by the Court of
Justice in front of itself to protect its financial interests has been
withdrawn. There is in this Institution for the first time after 60 years a
formal, detailed report, approved by the General Court, which covers the
shortcomings and possible reforms of its governance. A reflection is slowly
open on the weaknesses of the system of access to administrative documents.
These changes prove already that with an open mind, we can easily do better.

And I leave this
place with a smile at the thought that, as my memoranda cover essentially
legislative and administrative issues, they are essentially accessible to
citizens. As a lawyer, I wanted to build a complete file that illustrates in
many ways the fundamental need to reform, for the first time since 1952, the
governance of this institution during the next revision of the EU treaties.
When you have a limited influence on the present, you can always at least
prepare the future.

This was
particularly necessary since the citizens’ access to the Institution’s
legislative and administrative documents not related to judicial proceedings
encounters serious difficulties. Article 15 TFEU guarantees that access, with
exceptions of course, to citizens who request it. However, the Institution has
at times resorted to secret documents in key areas (such as the revision of the
Treaties and the Statute). It has even distributed on one occasion at least a
key document secret, unsigned, and not listed. (Additionally, most members had
no idea about these documents, and they discovered them only thereafter in
other institutions or in the press.) In such circumstances, it is in fact
impossible to ensure the proper application of Article 15 TFEU. Furthermore,
one can occasionally question the qualification of "judicial affairs"
given to certain documents in the courts’ minutes. (The definition of the Rules
of procedure, for example, do not correspond to a judicial proceeding, but to a
regulatory function.) In this context, I have sent, as a member of the Institution,
13 requests for information to the Institution’s leaders during the last
months, with answers still to come. I hope they will also stimulate
improvements.

Finally, before
leaving, I must make a mea culpa. Over time, disappointment made me
occasionally acerbic. To give only one example, one evening after a
disappointing visit where we had heard once again lessons from the direction
about how to think about our own reform, I dropped to many friends: “the genius
of the Carpathians now seems to have found his genius of the carpets”. With
exasperation, formulas easily come to me. On the one hand, in retrospect, I
regret them. On the other, they constitute the inevitable consequence of the
permanent rejection of any discussion. I can but ask for forgiveness. You must
see there the reflection of the bitter stubbornness of a lawyer who had always
defended a high ideal of this Institution in his multiple past roles, and who
never accepted to abandon it once arrived here.

Ladies and
gentlemen, dear colleagues, fortunately, my stay in this Institution was not monopolised
by these conflicts. Besides these dark episodes, there were also luminous ones,
especially at the judicial level.

However, I shan’t speak
much about these activities. In this too, I have always defended a collective
vision. In this framework, one must try to listen to various opinions, and find
the necessary compromises. Ironically, I was even reproached, occasionally, for
being too flexible. With this modest approach, I have been happy to contribute to
the jurisprudence of this Institution, which I have always defended with
conviction during the whole period.

In the early years,
I was also pleased to discover a General Court (then CFI) which, at the time,
was making important and appreciated contributions to European law, that were
seriously debated inside and outside. A court which, at the time, enjoyed an
extremely strong external representation, as strong as the Court of Justice’s.
A General Court which, at the time, was not afraid of taking clear institutional
positions and especially was not afraid to defend them whenever necessary.

The passage of time
has allowed us, me and others, to measure even better the debt we had for this
to Bo Vesterdorf, the President at the time, and beyond, to Jose Luis da Cruz
Vilaca, the founding President. These men had great ambitions for their Court.
They represented it brilliantly outside thanks to many high-level conferences
and publications. And finally, they shared complete integrity with their colleagues.
I wanted to tell them today my great friendship and respect.

My team has
produced very good judicial results, both quantitative (many closed cases) and
qualitative (very few contests thereafter). Nevertheless, I have been mainly an
orchestra director. These very good results were possible only thanks to the
contribution of many people.

First, the members
of my cabinet, without which very little would have been possible. They know my
esteem, and even my great friendship for them. But this is not the place to expand
on this.

Second, the
personnel of the other cabinets. I have forged with them many relationships of
sympathy and even trust. They have sometimes discreetly encouraged me. I have
been touched by this support, especially in difficult times. Whenever necessary,
I tried to defend the qualified persons (but not necessarily the others), to
provide them with the required IT tools, and to put an end to the long
uncertainty over their future in which they are maintained.

Third, the registry
personnel. It comprehends general highly qualified persons, well led by two
successive, and very talented, registrars. The registry’s personnel rendered
many services to us. On my side, I always defended its staff needs, its IT
needs (this provoked occasionally some kind of administrative Vietnam), its
role as a full actor in procedural decisions, and finally its need for serious judges’
attention. This is an essential synergy, still too little analyzed.

Fourth, the Institution’s
administrative services. They also comprise in general highly qualified
persons, and they do not always work in easy conditions. We must have the
courage to recognize that too often here the administrative personnel are first
considered as an adjustment factor for the judges’ comfort. Let us remember the
very symbolic story of my colleague and friend Irena Wiszniewska on the day of
her arrival when someone told her, “you are a judge, so you can do anything”.
Furthermore, local leaders pay much attention here to the high appointments
(they make too many of them, and too often eugenic). However, they are less
interested in the living conditions of the rest of the machine. Whenever
necessary, I have tried to fight this tendency too, though this was far from
being popular.

Fifth and last, I
must acknowledge my great debt to my colleagues of the General Court. Dear
colleagues, all these years, you have been drowned in memoranda and
interventions on multiple issues (often administrative and legislative, but not
exclusively). This transparent and participatory management did not correspond
at all to the local genre. In fact, it was its complete opposite. Yet you have
quickly tolerated this and even very often supported its administrative and
legislative conclusions.

One of us said to
me one day, and I suspect it reflects a prevailing sentiment, “You are a
necessary evil”. To be honest, this is not the formula that I should have
preferred. Nevertheless, on the whole, it is better to be seen as a necessary
evil than as a decorative invertebrate.

Today, I leave this
place with satisfaction. Our court benefits from strong results, accurate
statistics, a productive observatory, a position on the future of the EU
judicial system, another one on the future of the Institution’s governance,
detailed analyses on the imperatives of intelligent legislative reform, a new
streamlined organization, many IT advances, greater transparency in the
allocation of cases, better awareness of the limits of external activities, and
a detailed strategy for the registry in a new court. Future observers will have
all necessary documents to determine where most of these changes came from. In
any case, this would not have been possible without your individual and
collective involvement.

Unlike many, it is
our plenary deliberations that I shall miss the most. Although they were often
long and sometimes difficult, they taught me immensely, and I cannot thank you
enough for that. I tried to prepare them systematically. In fact, one of my
great corridor neighbours accused me ritually of spending too much time in the
office of my colleagues. To that I always replied, “I’m not like you, I do not
hate my colleagues, and I even love them”. And that’s true. Beyond the
individual characteristics of your personalities, you represent the diversity
of Europe, which has always been one of the great charms of my life.

At this hour, I
would like to express one hope. During the past year, the management of this Institution
has seen some improvements. However, problems remain. Above all, the Institution’s
governance system remains out-dated, obscure, and devoid of sufficient controls.
So I hope that others will continue to take initiatives in these multiple
domains.

My grandfather,
Fernand Dehousse, who provided my education, taught me a great lesson. He was
in another era the first rapporteur of the first European Parliament on the
first draft European Constitution. During the war, due to his previous
writings, the Nazis forbade him from all professional activities. For four long
years, he remained home, starved and wrote numerous tracts and documents (some
of them advocating the integration of Europe). He always told me, “an idea
never dies so long as it finds one defender”. Today, I’d like to convey the
same lesson.

There are many
beautiful ideas in our European Treaties, even if this is less understood
today. One of the most beautiful is precisely our Institution. However, the
European Treaties have not created the Court; they have created the Court of
Justice. The Court is not, contrary to a popular local illusion, a value in
itself. It is only the instrument of a value - justice. Judges are not above
the law, or next to the law. They are, more modestly, its first servant. This
must always be remembered, especially in a place when an official says on arrival,
“you are a judge, you can do anything”.

Especially, when
judges hold exorbitant powers - as here – their legitimacy exists only if they
impose on themselves the same constraints that they impose on others. Nothing
is worse than a judge who ends up taking him(her)self for justice, except the
same, when exercising administrative and legislative powers. Indeed, then, whatever
his/her title and technical capabilities, such a judge becomes a subversion of
the separation of powers.

Consequently, I
hope that in the future, whenever necessary, some of you will go on defending my
fundamental concern during this whole period. According to the European Treaties,
it is judges who are the servants of justice, and not justice which is the
servant of judges - and even less of some judges - and even less of a single
judge, whoever s/he is.

With that, ladies
and gentlemen, dear colleagues, it remains to wish good luck to everyone in this
Institution, whatever their role, in work that remains essential, especially
now, for the future of our European continent.

For your humble servant,
it is now the time to say goodbye and express my gratitude to those who
supported me (let's be honest, in all meanings of the word), but above all
those who assisted me in many ways, encouraged me and upheld my multiple
initiatives to build together a better institution. Frankly, this has not
always been an experience which inspired enthusiasm. However, thanks to you, it
has always been, and this is essential, a humanly pleasant one. Therefore, very
sincerely, my deepest thanks to all of you.

Two judgments on Articles 34/36 TFEU (concerning the free
movement of goods) handed down by separate courts in the same week give stark
examples of the importance of having a good evidence base before a State seeks
to justify a public health intervention in the market. The first example was
the judgment of the CJEU in Case
C-148/15 Deutsche Parkinson Vereinigung, a preliminary reference
considering the compatibility of a German measure setting fixed prices for
prescription-only medicines. The second being the judgment of the Inner House
of the Court of Session in Scotland in Scotch Whisky Assoc v LA [2016] CSIH 77,
where the court upheld the Lord Ordinary’s finding that the Scottish
Government’s plans to introduce Minimum Unit Pricing (MUP) for alcohol were not
contrary to Art 34 (following the CJEU reference in Case
C-333/14). Both measures involved health justifications for pricing
restriction measures that fell foul of Art 34, but the results were very
different.

Fixed Price
Prescriptions

The German measure in DPV fixed the prices of all
prescription-only medicines in Germany; restricting the ability of pharmacists
to provide products at a discounted price. DPV, a self-help organisation for
Parkinson’s disease sufferers, had set up an arrangement with a Dutch mail order
pharmacy DocMorris (yes, that DocMorris)
to put in place a bonus system for its members. That bonus system was
challenged. The scheme was found to infringe Art 34 TFEU as mail-order
pharmacies are limited in the services they can offer, and the ability to price
competitively is the most likely means they have to access the German market
directly [24]. The Court then turned to the argument that the system of fixed
prices was justified in order to ‘ensure a safe and high quality supply of
medicinal products’ [32]. The argument was that without set prices pharmacies
may enter into ‘ruinous price competition’ which might result in the closure of
physical pharmacies in rural or underpopulated areas. It was argued those
pharmacies alone were well suited to offering safe high quality supplies,
tailored advice, and effective checks on medicines [33]. At [35] the Court
applied the test it set out in the Case C-333/14 SWA reference:

‘The reasons which may be invoked
by a Member State by way of justification must thus be accompanied by an
analysis of the appropriateness and proportionality of the measure adopted by
that State, and by specific evidence substantiating its arguments’.

It was this final point on ‘specific evidence’ that proved
to be crucial in the case, as the Court went on to explain in [36].

‘that court must examine
objectively, through statistical or ad hoc data or by other means, whether it
may reasonably be concluded from the evidence submitted by the Member State
concerned that the means chosen are appropriate for the attainment of the
objectives pursued and whether it is possible to attain those objectives by
measures that are less restrictive of the free movement of goods’.

In the subsequent paragraphs the Court went through the
submissions of the parties and suggested that there was ‘no evidence to
substantiate the contention’ that the scheme was necessary to ensure a uniform
supply of prescription-only medicines [37]. In fact nothing before the Court
suggested that without the system mail order pharmacies, competing on the basis
of price, would threaten essential services, such as emergency care or
providing activities in the general interest; in fact competition might
encourage traditional pharmacies to improve such services [39-40]. The
assertion of the Court at [42] is perhaps the most telling:

‘it should be noted that the existence
of a genuine risk to human health must be measured, not according to the
yardstick of general conjecture, but on the basis of relevant scientific
research’.

Because of the failure to provide convincing evidence of the
effectiveness of the measure the Court found that it had ‘not been shown to be
an appropriate means of attaining the objectives relied on’ [45]. It had
therefore fallen at the 1st hurdle in the two-part test. As it was not shown to
be ‘appropriate’, there was no need to consider if it was ‘necessary’.

Minimum Unit Pricing

The Inner House (IH) in SWA were tasked with applying the
same two-part test, but this time the result was very different. The court’s summary
of the evidence presented by the Scottish Govt runs across many paragraphs, [125]-[143],
citing numerous studies, both domestic and international in scope. The
Petitioner challenged the conclusions and methodology of a number of those
studies, but the Scottish Government argued that the State had discretion and
it was not unreasonable that it would ‘prefer one body of evidence the other,
so long as the information which supported the choice was cogent’ [130]. As the
IH was acting in an appeal it confined its review, in the most part, to
confirming that the Lord Ordinary, in the Outer House, had correctly applied
the law. The first important, and perhaps the most important, question was to
confirm that the Lord Ordinary had identified the correct aim of the
legislation. Both the AG and CJEU, in the reference, had noted that the
legislation appeared to have a dual objective, whereas the Lord Ordinary had
focused on a particular aim; the reduction of alcohol consumption by harmful
and hazardous drinkers. The IH found that the Lord Ordinary’s particular view
was identical to that of the CJEU. That is perhaps surprising, as many
commentators had seen a different emphasis in the CJEU; suggesting that it had
struck some form of balance between the narrow goal of dealing with harmful and
hazardous drinkers, and the wider goal of reducing general alcohol consumption.
The IH implicitly rejected that interpretation of the judgment.

In its examination of the appropriateness of the measure the
IH noted the extent of the problem with alcohol consumption; the ‘societal,
family, and personal effects of excessive alcohol consumption in Scotland are
difficult to over-estimate’ [178]. This assertion was based on the ‘raft of
statistical material [which] was produced’ [180]. It also recognised the clear
view that the policy would target harmful and hazardous drinkers. It noted that
it was possible to attempt to rebut figures used in support of the measure, or
counter the conclusions drawn by the Govt, but that ‘there was and is ample
objective material to support the proposition’ [182], and, at [183], that:

‘the Lord Ordinary cannot be
faulted in finding that there was evidence from which it could be inferred that
minimum pricing was an appropriate method of securing the objective by tackling
the specific consumption of cheap alcohol’.

When turning to the proportionality of the measure the IH
considered the Petitioners preferred measure, the increase of general taxation,
which they argued would be ‘as effective’ as MUP. But that argument was
rejected; ‘[t]he fundamental problem with an increase in tax is simply that it
does not produce a minimum price’ [196]. The IH pointed towards evidence that
retailers have sold below cost or absorbed, or off-set, tax increases. Also
that price increases in the lowest cost products would ‘produce a greater
reduction in sales than across the board price increases’ [199], as trading
down to lower cost products was not possible. In fact a general taxation
increase would have, ‘disproportionate, undesirable and unnecessary effect on
moderate drinkers, who do not generally represent a significant problem in
societal terms’ [200]. Finally, at [204], the IH addressed the choice of 50p
per unit:

‘Such a figure, on the material
produced, will reduce consumption amongst harmful and hazardous drinkers in
that quintile of the population whose health is affected most by the
consumption of cheap alcohol. The benefits of this are well documented’.

On that basis the Inner House, upheld the findings of the
Lord Ordinary and refused the reclaiming motion.

One interesting feature of the case before the IH was that the
CJEU had made it clear in its preliminary reference that a domestic court
should address the proportionality of the measure at the time it gives its
ruling, not at the time the measure was adopted. As the original pleadings were
lodged in 2012 a significant amount of new evidence and policy material had
become available in the intervening period; including new evidence since the
CJEU judgment in the reference was handed down in December 2015. The IH took
note of the evidence that was considered by the Lord Ordinary, and the
subsequent proceedings, and decided that it was in the interests of justice
that any pertinent new material should be considered. But it stressed that the
new information would only be significant if it was such that it would have
altered the Lord Ordinary’s view of the facts. It was apparent that the new
evidence merely added to the exiting body of evidence that supported the
effectiveness of MUP as an intervention.

Conclusions

In a series of recent decisions, including, for example,
Case C‑639/11
Poland & Case
C‑61/12
Lithuania, the CJEU has begun to
stress the importance of evidence to support an attempt to justify a
restriction on free movement. In DPV we see that requirement given greater
emphasis, and a new focus on the type of evidence that will be required. It is
not sufficient for a member State to rely on mere assertion or conjecture. They
will have to produce more. The Court’s preference is clearly for hard
statistical or scientific evidence, although it will accept other forms.
Domestic courts are charged with ensuring that the State has good evidence to
support the appropriateness and proportionality those measures. The judgment of
the IH shows how that analysis can be undertaken. It also makes clear that the
analysis of proportionality is not an event, rather a process. If a policy
stands or falls by its evidence, it must therefore be the case that changes in
the evidence base can alter whether that measure is ‘appropriate’ and/or
‘necessary’ over time.